Citation Nr: 0821825
Decision Date: 07/02/08 Archive Date: 07/14/08
DOCKET NO. 03-25 364 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an increased initial rating for a left knee
disability, rated as noncompensable as of June 1, 2002, and
as 10 percent disabling as of January 24, 2007.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jennifer Hwa, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1982 to May
2002.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 2003 rating decision of a Department
of Veterans Affairs (VA) Regional Office (RO) that granted
service connection and assigned a 0 percent rating for a left
knee disability, effective June 1, 2002. The Board remanded
the claim for additional development in February 2006.
An August 2007 rating decision increased the rating for a
left knee disability, from 0 percent to 10 percent disabling,
effective January 24, 2007. However, as that grant does not
represent a total grant of benefits sought on appeal, the
claim for increase remains before the Board. AB v. Brown, 6
Vet. App. 35 (1993).
FINDINGS OF FACT
1. For the period of June 1, 2002, to January 24, 2007, the
veteran's left knee disability was manifested by no more than
full extension and flexion limited at most to 135 degrees.
There was no instability, subluxation, dislocation,
ankylosis, locking, or x-ray evidence of arthritis.
2. For the period since January 24, 2007, the veteran's left
knee disability has been manifested by full extension and
flexion limited at most to 120 degrees. There is no
instability, subluxation, dislocation, ankylosis, or locking.
There is x-ray evidence of arthritis.
CONCLUSION OF LAW
The criteria for a compensable initial rating for a left knee
disability have not been met for the period of June 1, 2002,
to January 24, 2007; the criteria for an initial rating in
excess of 10 percent for a left knee disability have not been
met since January 24, 2007. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code (DCs)
5003, 5257, 5260, 5261 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Ratings for service-connected disabilities are determined by
comparing the symptoms the veteran is presently experiencing
with criteria set forth in VA's Schedule for Rating
Disabilities, which is based, as far as practically can be
determined, on average impairment in earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic
codes identify the various disabilities. When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher rating is assigned if the
disability more closely approximates the criteria for the
higher rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2007). After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3 (2007). Also, when making
determinations as to the appropriate rating to be assigned,
VA must take into account the veteran's entire medical
history and circumstances. 38 C.F.R. § 4.1 (2007); Schafrath
v. Derwinski, 1 Vet. App. 589, 592 (1995). The Board will
also consider entitlement to staged ratings to compensate for
times since filing the claim when the disability may have
been more severe than at other times during the course of the
claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999);
Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination upon which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity or the
like. 38 C.F.R. § 4.40 (2007).
Evidence of pain, weakened movement, excess fatigability, or
incoordination must be considered in determining the level of
associated functional loss in light of 38 C.F.R. § 4.40,
taking into account any part of the musculoskeletal system
that becomes painful on use. DeLuca v. Brown, 8 Vet. App.
202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of
pyramiding) do not forbid consideration of a higher rating
based on greater limitation of motion due to pain on use,
including flare-ups. The provisions of 38 C.F.R. § 4.40 and
38 C.F.R. § 4.45 (2007), however, are applicable only in
conjunction with the diagnostic codes predicated on
limitation of motion. Johnson v. Brown, 9 Vet. App. 7
(1996).
The intent of the rating schedule is to recognize painful
motion with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59 (2007).
The standardized description of joint measurements is
provided in Plate II under 38 C.F.R. § 4.71a (2007). For VA
purposes, normal extension and flexion of the knee is from 0
to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2007).
With respect to the joints, the factors of disability reside
in reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations: (a) less movement than normal (due to
ankylosis, limitation or blocking, adhesions, tendon-tie-up,
contracted scars, etc.); (b) more movement than normal (from
flail joint, resections, nonunion of fracture, relaxation of
ligaments, etc.); (c) weakened movement (due to muscle
injury, disease or injury of peripheral nerves, divided or
lengthened tendons, etc.); (d) excess fatigability;
(e) incoordination, impaired ability to execute skilled
movements smoothly; and (f) pain on movement, swelling,
deformity or atrophy of disuse. Instability of station,
disturbance of locomotion, interference with sitting,
standing and weight-bearing are related considerations. 38
C.F.R. § 4.45 (2007). For the purpose of rating disability
from arthritis, the knee is considered a major joint. 38
C.F.R. § 4.45 (2007).
Arthritis shown by X-ray studies is rated based on limitation
of motion of the affected joint. When limitation of motion
would be noncompensable under a limitation-of-motion code,
but there is at least some limitation of motion, a 10 percent
rating may be assigned for each major joint so affected. 38
C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003 (degenerative
arthritis) and 5010 (traumatic arthritis). DC 5010
(traumatic arthritis) direct that the evaluation of arthritis
be conducted under DC 5003, which states that degenerative
arthritis established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
38 C.F.R. § 4.71a, DC 5010. The limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. 38 C.F.R.
§ 4.71a, DC 5010. In the absence of limitation of motion, X-
ray evidence of arthritis involving two or more major joint
groups with occasional incapacitating exacerbations will
warrant a 20 percent rating. The above ratings are to be
combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC
5010, Note 1.
The VA General Counsel has held that a claimant who has
arthritis and instability of the knee may be rated separately
under DC 5003 and DC 5257, and that evaluation of a knee
disability under both of these codes would not amount to
pyramiding under 38 C.F.R. § 4.14 (2007). VAOPGCPREC 23-97
(July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown,
6 Vet. App. 259 (1994). However, a separate rating must be
based on additional disability.
The General Counsel also held that separate ratings may be
assigned for limitation of flexion and limitation of
extension of the same knee. Specifically, where a veteran
has both a limitation of flexion and a limitation of
extension of the same leg, the limitations must be rated
separately to adequately compensate for functional loss
associated with injury to the leg. VAOPGCPREC 9-04 (Sept.
17, 2004), 69 Fed. Reg. 59990 (2005).
The veteran's left knee disability is currently rated as 10
percent disabling under DC 5260, which pertains to limitation
of flexion of the leg. 38 C.F.R. § 4.71a, DC 5260 (2007).
Diagnostic Code 5261, which contemplates limitation of
extension of the leg, is also applicable in this claim.
38 C.F.R. § 4.71a, DC 5261 (2007).
In considering the applicability of other diagnostic codes,
the Board finds that DCs 5256 (ankylosis of the knee), 5257
(recurrent subluxation or lateral instability), 5258
(dislocation of semilunar cartilage), 5259 (symptomatic
removal of semilunar cartilage), 5262 (impairment of the
tibia and fibula), and 5263 (genu recurvatum) are not
applicable in this instance, as the medical evidence does not
show that the veteran has any of these conditions.
Specifically, no treatment record, or any report of VA
examination demonstrate any objective finding of dislocation,
locking, subluxation, or instability of the left knee.
Similarly, ankylosis of the left knee has not been
demonstrated.
Diagnostic Code 5260 contemplates limitation of leg flexion.
Under DC 5260, a zero percent rating is warranted for flexion
limited to 60 degrees; a 10 percent rating is warranted for
flexion limited to 45 degrees; a 20 percent rating is
warranted for flexion limited to 30 degrees; and a 30 percent
rating is warranted for flexion limited to 15 degrees.
38 C.F.R. § 4.71a, DC 5260. Under DC 5261 (limitation of
extension of the leg), a zero percent rating is warranted for
extension limited to 5 degrees; a 10 percent rating is
warranted for extension limited to 10 degrees; a 20 percent
rating is warranted for extension limited to 15 degrees; a 30
percent rating is warranted for extension limited to 20
degrees; a 40 percent rating is warranted for extension
limited to 30 degrees; and a 50 percent rating is warranted
for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC
5261.
The Board now turns to the various stages for consideration.
1. From June 1, 2002, to January 24, 2007
From June 1, 2002, to January 24, 2007, the veteran's left
knee disability was rated as noncompensable.
On VA examination in September 2002, the veteran reported
that he underwent a diagnostic arthroscopy and limited
chondroplasty in June 1999 for a torn meniscus. He
complained of currently experiencing pain and swelling of the
knee associated with extended periods of weightbearing or
going up and down stairs or steps. He denied any giving way
of the knee and stated that he did not use a brace or cane.
Examination revealed an unremarkable gait. The left knee had
135 degrees range of motion. There was mild pain on motion
with slight patellofemoral crepitation noted during maximum
flexion. The examiner found no redness, heat, swelling, or
ligamentous instability. There was some tenderness to
palpation around the area of the medial patellofemoral joint
as well as some mild pain with patellar compression and
minimal joint line pain. The veteran had a slight grinding
sensation on McMurray testing. He was able to heel and toe
walk and do a partial squat with some increase in knee pain
noted. An x-ray of the left knee was normal and showed no
evidence of arthritis, fracture, dislocation, bone
destruction, or joint effusion. The examiner diagnosed the
veteran with left knee pain with torn meniscus, status post
diagnostic arthroscopy and limited chondroplasty. He
explained that the mild pain on range of motion testing could
further limit functional ability during flare-ups or with
increased use, but it was not feasible to express this in
terms of additional limitation of motion.
In an August 2003 VA medical report, the veteran complained
of knee pain and stated that he had traumatic arthritis in
his left knee. The physician found crepitus with
manipulation of the left knee. He diagnosed him with a knee
injury incurred while in the Navy, by history, and arthritis
of the left knee.
For VA purposes, normal extension and flexion of the knee is
from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II. On the
above examination, the veteran's left knee had full
extension, or extension to 0 degrees. Extension to 0 degrees
warrants a noncompensable evaluation. Diagnostic Code 5261
therefore cannot serve as a basis for an increased rating in
this case. Similarly, DC 5260 cannot serve as a basis for an
increased rating in this case. The flexion of the veteran's
left knee would have to be limited to 45 degrees in order to
warrant an increased rating of 10 percent. Flexion limited
at most to 135 degrees in the left knee, as demonstrated on
the September 2002 VA examination, does not warrant a
compensable rating under DC 5260.
The Board has determined that the veteran is not entitled to
a compensable rating under either DC 5260 or 5261. Given
that he did not meet the criteria for a compensable rating
under either of these diagnostic codes, General Counsel
Precedent Opinion VAOPGCPREC 9-2004 is not applicable.
VAOPGCPREC 9-2004 (September 17, 2004). VAOPGCPREC 9-2004
held that separate ratings could be assigned when the
criteria for a compensable rating under both DC 5260 and DC
5261 were met. In the present case, there is no basis for a
compensable rating under either of DC 5260 or DC 5261.
The Board also finds that the veteran is not entitled to an
increased rating due to functional impairment as a result of
pain on repetitive use. On VA examination in September 2002,
the veteran complained of pain and swelling of the left knee
associated with extended periods of weightbearing or going up
and down stairs or steps. However, even if the veteran does
experience flare-up of his left knee disability, there is no
evidence which suggests, that, on repetitive use, the left
knee would be restricted by pain or other factors to only 45
degrees flexion or 10 degrees extension. Thus, even
considering the effects of pain on use, there is no probative
evidence that the left knee is limited in motion to 10
degrees extension or 45 degrees flexion, and thus the
requirements for an increased rating are not met. 38 C.F.R.
§§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
Furthermore, the Board finds that the evidence does not show
that any additional functional limitation would result in the
veteran warranting any separate compensable ratings for
limitation of extension and flexion.
The criteria under DCs 5003 and 5010, which pertain to
degenerative and traumatic arthritis, respectively, apply
when limitation of motion would be noncompensable under a
limitation of motion code and there is X-ray evidence of
arthritis. 38 C.F.R. § 4.71a, DCs 5003, 5010. In this case,
the veteran's left knee disability is noncompensable under DC
5260 and DC 5261, which are diagnostic codes predicated on
limitation of motion. The evidence shows a noncompensable
level of limitation of motion. On VA examination in
September 2002, an x-ray of the left knee was normal and
showed no evidence of arthritis, but had flexion limited to
135 degrees, where 140 degrees flexion is normal. 38 C.F.R.
§ 4.71a (2007). Although the veteran was diagnosed with
arthritis of the left knee in an August 2003 VA medical
report, that assessment was not supported by objective x-ray
evidence. A 10 percent rating for arthritis is only
warranted under DCs 5003 and 5010 when the arthritis is
established by x-ray evidence. 38 C.F.R. § 4.71, DCs 5003,
5010. The Board thus finds that the veteran is not entitled
to an increased rating for his left knee disability due to
arthritis because the evidence of record prior to January 24,
2007, does not include X-ray evidence or arthritis.
In sum, the Board finds that the weight of the credible
evidence demonstrates that the veteran's left knee disability
did not warrant a compensable rating for the period under
consideration. As the preponderance of the evidence is
against the claim for an increased rating, the claim must be
denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
2. From January 24, 2007, to Present
From January 24, 2007, to the present, the veteran's left
knee disability has been rated as 10 percent disabling.
On VA examination in January 2007, the veteran complained of
sharp and constant pain in the left kneecap area. He
reported that the pain worsened with activity and cold
weather. He stated that he had flare-ups every two to three
months that lasted several days with increased pain and
swelling. He reported that he had never had his knee drained
and denied using assistive devices. Examination revealed a
normal gait. The veteran was able to sit, stand, and get out
of a chair without problems. The left knee had 120 degrees
flexion and 0 degrees extension. The examiner found no
scars, erythema, effusion, valgus or varus deformity,
grinding, or instability. Anterior and posterior drawer
signs and McMurray's sign were negative. The medial joint
line was painful to palpation, but the lateral joint line was
not painful to palpation. The veteran was able to perform
deep knee bends without difficulty. An x-ray showed mild
degenerative changes of the left knee. The examiner
diagnosed the veteran with osteoarthritis of the left knee
and stated that additional limitation of function due to
repetitive use or flare-ups could not be determined without
resorting to mere speculation.
For VA purposes, normal extension and flexion of the knee is
from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II. On the
above examination, the veteran's left knee had full
extension, or extension to 0 degrees. Extension to 0 degrees
warrants a noncompensable rating. Diagnostic Code 5261
therefore cannot serve as a basis for an increased rating in
these cases. Similarly, DC 5260 cannot serve as a basis for
an increased rating in these cases. The flexion of the
veteran's left knee would have to be limited to 30 degrees in
order to warrant an increased rating of 20 percent. Flexion
limited at most to 120 degrees in the left knee, as
demonstrated on the January 2007 VA examination, does not
warrant a compensable rating under DC 5260.
The Board has determined that the veteran is not entitled to
a compensable rating under DC 5261. Given that he did not
meet the criteria for a compensable rating under DC 5261,
General Counsel Precedent Opinion VAOPGCPREC 9-2004 is not
applicable. VAOPGCPREC 9-2004 (September 17, 2004).
VAOPGCPREC 9-2004 held that separate ratings could be
assigned when the criteria under DCs 5260 and 5261 were met.
In the present case, although the veteran has a 10 percent
rating for his left knee disability under DC 5260, there is
no basis for a compensable rating under DC 5261.
The Board also finds that the veteran is not entitled to an
increased rating due to functional impairment as a result of
pain on repetitive use. On VA examination in January 2007,
the veteran complained of flare-ups every two to three months
that lasted several days with increased pain and swelling.
However, even if the veteran experiences painful flare-up of
his left knee disability, there is no evidence which
suggests, that, on repetitive use, the left knee would be
restricted by pain or other factors to only 30 degrees
flexion or 15 degrees extension, the criteria for a 20
percent rating, or restricted such that any separate
compensable rating would be warranted. Thus, even
considering the effects of pain on use, there is no probative
evidence that the left knee is limited in motion to 15
degrees extension or 30 degrees flexion, and thus the
requirements for an increased rating are not met. 38 C.F.R.
§§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
Furthermore, the Board finds that the evidence does not show
that any additional functional limitation would result in the
veteran warranting any separate compensable ratings for
limitation of extension and flexion.
There is x-ray evidence in this case that demonstrates that
the veteran's left knee disability is manifested by
arthritis. The criteria under DCs 5003 and 5010 apply when
limitation of motion would be noncompensable under a
limitation of motion code. 38 C.F.R. § 4.71a, DCs 5003,
5010. In this case, the veteran's left knee disability is
noncompensable under DC 5260 and DC 5261, which are
diagnostic codes predicated on limitation of motion. On VA
examination in January 2007, an x-ray showed mild
degenerative changes of the left knee, and the diagnosis was
osteoarthritis of the left knee. The veteran was assigned a
10 percent disability rating because there was x-ray evidence
of arthritis in the left knee, with a noncompensable level of
limitation of motion shown.
A claimant who has arthritis and instability of the knee may
be rated separately under DC 5003 and DC 5257, and that
evaluation of a knee disability under both of these codes
would not amount to pyramiding under 38 C.F.R. § 4.14 (2007).
VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997);
Esteban v. Brown, 6 Vet. App. 259 (1994). However, a
separate rating must be based on additional disability.
Diagnostic Code 5257 provides a 10 percent rating for slight
recurrent subluxation or lateral instability. A 20 percent
rating is warranted for moderate recurrent subluxation or
lateral instability. A 30 percent rating is warranted for
severe recurrent subluxation or lateral instability.
38 C.F.R. § 4.71a, DC 5257 (2007). The Board finds that the
veteran is not entitled to an increased rating under DC 5257.
Because the veteran's medical examination shows no evidence
of any recurrent subluxation or lateral instability, neither
an increased rating nor a separate compensable rating for his
left knee disability based on instability or subluxation is
warranted.
In sum, the Board finds that the weight of the credible
evidence demonstrates that the veteran's left knee disability
did not warrant a rating in excess of 10 percent disabling
for the period under consideration. As the preponderance of
the evidence is against the claim for an increased rating,
the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Duties to Notify and Assist the Appellant
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in July 2002; rating
decisions in January 2003 and August 2007; and a statement of
the case in August 2003. These documents discussed specific
evidence, the particular legal requirements applicable to the
claim, the evidence considered, the pertinent laws and
regulations, and the reasons for the decisions. VA made all
efforts to notify and to assist the appellant with regard to
the evidence obtained, the evidence needed, the
responsibilities of the parties in obtaining the evidence,
and the general notice of the need for any evidence in the
appellant's possession. The Board finds that any defect with
regard to the timing or content of the notice to the
appellant is harmless because of the thorough and informative
notices provided throughout the adjudication and because the
appellant had a meaningful opportunity to participate
effectively in the processing of the claim with an
adjudication of the claim by the RO subsequent to receipt of
the required notice. There has been no prejudice to the
appellant, and any defect in the timing or content of the
notices has not affected the fairness of the adjudication.
See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically
declining to address harmless error doctrine); see also
Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has
satisfied its duty to notify the appellant and had satisfied
that duty prior to the final adjudication in the August 2007
supplemental statement of the case.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. VA has also obtained medical examinations in
relation to this claim. Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law.
ORDER
A compensable initial rating from June 1, 2002, to January
24, 2007, and an initial rating in excess of 10 percent from
January 24, 2007, to the present, for a left knee disability
are denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs